JOSEPH KUCZYNSKI v. JOHN POMPONI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOSEPH AND MARYANNE KUCZYNSKI,

Plaintiffs-Respondents,

v.

JOHN POMPONI, Individually and

JOHN POMPONI HEATING,

Defendants,

and

TOWN OF KEARNY,

Defendant-Appellant.

______________________________________

May 27, 2016

Argued March 14, 2016 Decided

Before Judges O'Connor and Suter.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No.

L-2023-15.

Mark C. DeBlis argued the cause for appellant (Jose B. Moreira, attorney; Monique D. Moreira, on the brief).

Stelio G. Papadopoulo argued the cause for respondents (The Law Office of Stelio G. Papadopoulo, P.C., attorney; Mr. Papadopoulo on the brief).

PER CURIAM

In this interlocutory appeal, defendant Town of Kearny appeals the August 7, 2015 order denying its motion to dismiss plaintiffs' complaint, which includes a cause of action against the town under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. In its motion to dismiss, the town contended plaintiffs failed to file a notice of claim within ninety days of the accrual of their cause of action, see N.J.S.A. 59:8-8(a). For the reasons that follow, we disagree with that contention and affirm.

I

The competent evidence before the trial court when it denied the town's motion was that which was set forth in plaintiffs' certification in response to the town's motion. That certification provided as follows. Plaintiffs were the owners of a one-family house in Kearny on March 18, 2013, when a toilet in their basement overflowed, expelling raw sewage. Defendant John Pomponi, a plumber,1 advised plaintiffs their sewer line was broken and needed to be replaced from the house to the curb. In light of his opinion, plaintiffs assumed their plumbing problem originated from a defect on their property and was not attributable to the fault of another party. The sewage pipes from the foundation of plaintiffs' home to the curb were then replaced.

On Thanksgiving 2013, the basement toilet flooded and again expelled sewage. Pomponi snaked the pipes and concluded that an object which did not belong was flushed down the toilet. The same problem occurred one month later around Christmas, at which time Pomponi opined there was a blockage in plaintiffs' sewer pipe somewhere between their house and the point where the pipe connected to the town's sewer system in the street. Pomponi also advised plaintiffs they were responsible for that pipe all the way to where it connected to the town's system.

Although there is no evidence plaintiffs suspected fault lay with the town, at some unspecified point between Pomponi's visit in December 2013 and February 24, 2014, plaintiffs contacted the town and asked if it could provide any assistance in remediating the problems they were having with their plumbing.2 The town's Department of Public Works inspector came out to plaintiffs' home and, after reviewing the site, advised them the town could not be of any help.

Plaintiffs sought an opinion from another plumber, John DeGrace. On February 24, 2014, DeGrace viewed plaintiffs' pipes with the aid of a camera and determined there was a blockage in the pipe between the sidewalk and the middle of the street, requiring "the sewage pipes to the city mains had to be replaced." Plaintiffs certified that, based upon DeGrace's opinion, they assumed the blockage was within one of their pipes.

Plaintiffs hired a contractor who, on March 25, 2014, excavated the area from the sidewalk in front of their house to the middle of the street. The contractor discovered there were sink holes in the street that had been filled. Boulders used to fill the sink hole had crushed and disconnected one of plaintiffs' pipes near where the pipe connected to the town's sewer main. The plumbing inspector from the town, who was present during the excavation, commented "this is our fault." It was at that point plaintiffs realized the town was at fault for their plumbing problems. On May 20, 2014, plaintiffs served a notice of claim upon the town, see N.J.S.A. 59:8-8.

After plaintiffs filed a complaint against defendants, the town filed a motion to dismiss plaintiffs' complaint against it, arguing plaintiffs' cause of action against it accrued in December 2013, when Pomponi suggested to plaintiffs there was a blockage in plaintiffs' sewer pipes somewhere between their house and the town's sewer main. The town contended that as plaintiffs did not serve a notice of claim upon it until May 20, 2014, which was more than ninety days after the accrual of plaintiffs' claim, their complaint against it had to be dismissed pursuant to N.J.S.A. 59:8-8.

The trial court disagreed, finding the first time plaintiffs knew or should have known the town might be at fault was on February 24, 2014. The court reasoned that, before such date, plaintiffs had relied upon Pomponi, an expert in the field of plumbing, to explain the nature and cause of their plumbing problems and that Pomponi had not indicated the town might be at fault for their problems. However, according to the trial court, the second plumber, DeGrace, suggested to plaintiffs on February 24, 2014 that they

make inquiry with [the town] with respect to the problem because part of it could be [the town's] problem related to this blockage and broken sewage pipes if you will. So, the operative date as far as the court's concerned [is] February 24, 2014. The notice was served on May 20, 2014, four days short of the 90 days and the court does find that the discovery rule does apply in this case.

Plaintiffs' certification does not reflect DeGrace or anyone else recommended on February 24, 2014 that they contact the town about the blockage. According to plaintiffs' certification, DeGrace told them there was a blockage in the pipe between the sidewalk and the middle of the street, and that the sewage pipes leading to the town "mains" had to be replaced. Pomponi previously advised plaintiffs they were responsible for the pipe leading to the town's sewage system. DeGrace's opinion only reinforced information previously provided to them, which was there was a blockage in one of their not the town's pipes. Plaintiffs even certify that, after speaking with DeGrace, "we continued to believe that the problem was one that stemmed from our property."

II

On appeal, the town argues plaintiffs had ninety days from December 2013 to serve it with a notice of claim, because at that time plaintiffs knew the problem with their pipes "ran into the street affronting their home." The town indicates that because plaintiffs knew their pipe ran into the street, they should have known the town might have caused the problems with their plumbing. We reject this argument and affirm.

According to plaintiffs' certification, in December 2013 Pomponi told plaintiffs there was a blockage in their sewer pipe somewhere between their house and the point where their pipes connected to the town's sewer system in the street. Significantly, Pomponi also advised plaintiffs that they were responsible for the sewage pipe that extended into the road and to the point where it connected to the municipal sewage system. There was nothing imparted by this expert to plaintiffs to suggest they were not responsible for any sewer pipe or pipes merely because they extended into the street in front of plaintiffs' home. Plaintiffs were led to believe they were responsible to the point where their pipes connected to the municipal sewer mains.

N.J.S.A. 59:8-8 provides in pertinent part

A claim relating to a cause of action for . . . damage to property shall be presented as provided in this chapter not later than the 90th day after accrual of the cause of action. After the expiration of six months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity or public employee if

a. The claimant failed to file the claim with the public entity within 90 days of accrual of the claim except as otherwise provided in N.J.S. 59:8-9.

It is clear that before a complaint may be filed against a public entity under the TCA, a plaintiff must first serve a notice of claim upon the alleged culpable public entity within ninety days of the accrual of the claim, see N.J.S.A. 59:8-8a, or be permanently barred from pursuing the subject claim against the public entity. Velez v. City of Jersey City, 180 N.J. 284, 290, 293 (2004). N.J.S.A. 59:8-1 does not define at what point a cause of action accrues, but our Supreme Court has concluded "'the term accrual of a cause of action shall be defined in accordance with existing law in the private sector.'" Beauchamp v. Amedio, 164 N.J. 111, 116 (2000) (citing Harry A. Margolis & Robert Novack, Claims Against Public Entities, 1972 Task Force Comment to N.J.S.A. 59:8-1, (Gann 2000)).

Under our case law "[o]rdinarily, a cause of action accrues when any wrongful act or omission resulting in any injury, however slight, for which the law provides a remedy, occurs." Ibid. (citing Tortorello v. Reinfeld, 6 N.J. 58, 65 (1959)). Further, "[g]enerally, in the case of tortious conduct resulting in injury, the date of accrual will be the date of the incident on which the negligent act or omission took place." Id. at 117 (citing Fuller v. Rutgers, The State Univ., 154 N.J. Super. 420, 423 (App. Div. 1977), certif. denied, 75 N.J. 610 (1978)).

However, it is also well-settled the discovery rule applies to claims brought under the TCA. See McDade v. Siazon, 208 N.J. 463 (2011). The discovery rule applies when "the victim either is unaware that he has been injured or, although aware of an injury, does not know that a third party is responsible." Beauchamp, supra, 164 N.J. at 117 (emphasis added) (citing Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 144-45 (1988) (noting the discovery rule applies to the TCA)). In that instance, a cause of action does not accrue until "the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another." Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001). Moreover, because the cause of an injury or damages is not ascertainable by a lay person, a party may not know a third party is at fault for damages until informed by an expert. See generally Guichardo v. Rubinfeld, 177 N.J. 45, 52-53 (2003); Gallagher v. Burdette-Tomlin Med. Hosp., 318 N.J. Super. 485, 496 (App. Div. 1999).

Here, in our view, the first time plaintiffs knew or should have known the town might be at fault for their property damage was on March 25, 2014, when plaintiffs discovered that boulders the town had used to fill a sink hole in the street had crushed one of plaintiffs' pipes, causing a blockage in that pipe and plaintiffs' ensuing plumbing problems. Of course, at that time the town's plumbing inspector also flatly stated "this is our fault."

But before March 25, 2014, none of the experts the plumbers who assessed and addressed plaintiffs' problems with their sewage pipes suggested the town or any third party was at fault, and there were no other facts that should have alerted plaintiffs that another was at fault. The fact that the experts ultimately pinpointed there was a blockage in one of plaintiffs' pipes close to or in the street would not have suggested to the reasonable person the town was at fault, as one of the plumbers advised plaintiffs they were responsible for all of the piping leading up to the town's sewer main. The town also deflected responsibility away from itself when it told plaintiffs sometime between Christmas 2013 and February 24, 2014 that it could not help plaintiffs resolve their problem, implicitly suggesting the town was not culpable.

The trial court found February 24, 2014 to be the operative date when plaintiffs knew or should have known the town might have been responsible for their plumbing problems. The record provided to us by the parties does not support that factual finding; however, in the final analysis, the outcome is the same. SeeIsko v. Planning Bd. of Livingston, 51 N.J.162, 175 (1968) (reciting the well-settled principle that "if the order of the lower tribunal is valid, the fact that it is predicated upon an incorrect basis will not stand in the way of its affirmance"), abrogated on other grounds by, Commercial Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J.546 (1991). The notice of claim plaintiffs served upon the town on May 20, 2014 was timely because it was submitted within ninety days of March 25, 2014. Even if the operative date were February 24, 2014, the notice of claim was still timely served upon the town.

Affirmed.

1 In their complaint plaintiffs allege Pomponi was not in fact a licensed plumber, but the issue of his licensure is not before us.

2 The record does not reveal the kind of assistance plaintiffs requested.